What Is Extradition?

Just what could mild-mannered IT contractor Edward Snowden have in common with the notorious Great Train robber Ronnie Biggs? While their backgrounds, and most certainly their occupations, are poles apart, they have both been subject to extradition requests (one successful, in the case of Biggs, the other not, so far).

Extradition is where one country requests that another returns an individual in order for them to stand trial, be sentenced for an offence for which they have already been convicted or to serve a prison sentence that has already been imposed. It is a hugely complex area of the law and one where expert legal advice and representation is essential.

Import and export extradition requests

Extradition requests are covered by conventions and treaties between countries. The UK has extradition agreements with more than 127 countries around the world.

An export extradition request is where a country asks the UK to extradite someone from this country, whereas an import request is one made by the UK to another country for an individual to be extradited to the UK.

The UK has different categories of extradition, depending on the relations between us and the requesting country. It is the UK’s policy to extradite its own nationals, providing no bars to extradition apply.

Export extradition to category 1 territories

The Extradition Act 2003 Part 1 implements the European Arrest Warrant (EAW) framework decision of 2002 and governs export extradition from the UK to category 1 territories – the other 27 Member States of the European Union and also Gibraltar.

The process follows these steps:

an EAW is submitted

certificate is issued (after a proportionality test is applied)

arrest

initial hearing where the judge decides whether the person arrested is the person named on the warrant; fixes a date for the start of the extradition hearing; informs the person about the content of the EAW; explains to the person that he may consent to his surrender; and decides whether to grant bail or remand the person in custody pending the extradition hearing

extradition hearing where the judge must decide if the offence is an extraditable offence, whether there are any bars to the extradition, if the extradition is compatible with the person’s rights under the European Convention on Human Rights (ECHR) and proportionate to the seriousness of the conduct and the likely sentence. If there are no statutory grounds to refuse the request, an order is made for the person’s surrender.

Export extradition to category 2 territories

Category 2 territories are countries outside the EU and requests to extradite a person from the UK to one of these is covered by Part 2 of the Extradition Act. There are currently 100 countries designated as category 2 territories.

Requests from these territories require decisions by both the Secretary of State and the courts.

The process to these territories follows these steps:

extradition request is made to the Secretary of State

Secretary of State decides whether to certify the request

judge decides whether to issue a warrant for arrest

the person wanted is arrested and brought before the court

preliminary hearing where the judge informs the person about the content of the extradition request; explains that he/she may consent to his/her extradition; fixes a date for the start of the extradition hearing; and decides whether to bail the person or remand him/her in custody until the extradition hearing

extradition hearing where the judge must decide whether the documentation submitted by the Secretary of State complies with the Act; whether the individual arrested is the person named on the warrant; whether the offence is an extraditable one; be satisfied that the person possesses all the necessary documentation, including copies of the request and the Secretary of State’s certificate; whether there are any bars to extradition; and, whether the extradition is compatible with the person’s rights under the ECHR

The Secretary of State decides whether to order extradition, having first considered

- the possible imposition of the death penalty (in which case extradition cannot be ordered)

- the rule of specialty (prohibiting a person being dealt with in the requesting state for matters other than those referenced in the extradition request)

- whether or not the person was in the UK following extradition from another state (in which case that state’s permission must be obtained before extraditing to a third state)

Export extradition to non-category 1 or 2 territories

Export extradition to countries that are neither category 1 or 2 territories, of which there are many, may still be possible under the Extradition Act. They would fall under secondary legislation and specific international conventions or special ‘ad hoc’ arrangements. However, such scenarios are rare.

Import extradition

Import extradition requests to countries that are not category 1 territories fall outside the scope of the 2003 Act and are made under the royal prerogative. Prosecuting authorities in England and Wales and Northern Ireland (e.g. Crown Prosecution Service, Serious Fraud Office or Public Prosecution Service Northern Ireland) and the Crown Office an Procurator Fiscal Service in Scotland prepare the extradition requests, which are then forwarded to the requested state by the International Criminality Unit at the Home Office via the diplomatic route.

There are two types of export request:

a full order request which fully complies within the requirements of the relevant treaty or other international arrangement with the requested state

a request for provisional arrest where someone is known to be in a particular country but where there is insufficient time to prepare a full request, because the person is deemed to be a flight risk. In such cases, the person will usually be arrested before extradition papers are formally submitted.

The British Embassy or High Commission in the requested state notifies the ICU, or Interpol notifies the police, when the requested person is available for surrender. The police (usually from the force where the original arrest warrant was issued) then collect and escort the requested person back to the UK.